State secrets showdown looms

4/21/13 1:37 PM EDT

The Obama Administration and a federal judge in San Francisco appear to be headed for a showdown over the controversial state secrets privilege in a case about the U.S. government's 'no-fly' list for air travel.

U.S. District Judge William Alsup is also bucking the federal government's longstanding assertion that only the executive branch can authorize access to classified information.

The disputes arose in a lawsuit Malaysian citizen and former Stanford student Rahinah Ibrahim filed seven years ago after she was denied travel and briefly detained at the San Francisco airport in 2005, apparently due to being on the no-fly list.

In an order issued earlier this month and made public Friday, Alsup instructed lawyers for the government to "show cause" why at least nine documents it labeled as classified should not be turned over to Ibrahim's lawyers. Alsup said he'd examined the documents and concluded that portions of some of them and the entirety of others could be shown to Ibrahim's attorneys without implicating national security.

"After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced with little or no modifications to them," Alsup wrote in an April 2 order (posted here). "This order independently determines that in addition to correspondence between the parties, the two internal training documents are eligible for production to plaintiff’s counsel without implicating national security."

If the judge persists in his ruling, it would be highly unusual since most judges are loath to override the executive branch's conclusions that certain information needs to be classified on national security grounds. It has happened on a few occasions (see here, here, and here), but such decisions are very rare.

In a separate order Friday (posted here), Alsup ordered the disclosure of about 60 other unclassified documents to Ibrahim's lawyers, largely rejecting the government's arguments that the records were protected from disclosure by a statute or covered by legal privileges that apply to government decisionmaking and to information about sensitive law-enforcement techniques.

"There is some risk that disclosure of these documents would hinder frank and ongoing discussion regarding contemplated visa decisions. Nevertheless, these documents are highly relevant to plaintiff’s claims and are not available from any other source," Alsup wrote. "The other factors that outweigh the government’s assertion of the [eliberative process privilege] likewise play a substantial role here. Plaintiff has properly pled constitutional claims challenging alleged government misconduct. This creates a strong interest in accurate fact-finding for plaintiff and for society, and a strong interest in the enforcement of the constitutional protections asserted in plaintiff’s complaint."

Alsup said most of the records from around the time when Ibrahim was denied air travel in 2005 were "stale" and therefore unlikely to disclose current law enforcement techniques. He did allow the government to withhold a few documents that pertain to "terrorist screening and watchlist procedures" from 2009 to now. "Because of their more recent vintage, they present a greater risk of harmful disclosure, and the government’s interests are magnified," he wrote

Alsup also said the government was deeming some correspondence between Ibrahim and the government classified, which he said could not be the case.

Attorney General Eric Holder and Director of National Intelligence James Clapper have filed declarations in the case, apparently in a bid to support the state secrets claims. Those and other supporting filings are off limits to the public, but at a hearing on Thursday Alsup ordered the Holder and Clapper declarations turned over to Ibrahim's lawyers, according to the court's docket.

Lawyers for the government asked that Thursday's hearing be closed, but Alsup denied that request, the docket indicates.

During the 2008 campaign, President Barack Obama and supporters like Holder decried President George W. Bush's Administration's use of the state secrets privilege to defeat lawsuits over national-security related issues. After taking office, Holder instituted a process that he said would limit use of the privilege, but the Obama administration has continued to deployed it to block litigation over the so-called warrantless wiretapping program, renditions of terrorism suspects by the Central Intelligence Agency and other matters.

The Justice Department's handling of the state secrets privilege in Ibrahim's case could be seen as a product of the reforms Holder announced. Government lawyers have not asked that the case be dismissed outright on those grounds, but have instead asked that certain evidence they deem to be state secrets be kept from her attorneys. The impact, if any, of Holder's order is a bit hard to ascertain since the lawsuit was in litigation for three years under Bush.

Alsup, a Clinton appointee, is riding the government pretty hard in recent rulings. However, it's hard to argue that he's exhibiting an anti-government bias. He twice dismissed Ibrahim's claims against federal agencies, but the U.S. Court of Appeals for the Ninth Circuit reversed his decisions . Now, Alsup seems determined to move the case forward. A trial is currently scheduled for November.